JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2013
DATE OF JUDGMENT:	11 October 2013
CASE MAY BE CITED AS:	Limin James Chen & Anor v Kevin McNamara & Son Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 539

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PRACTICE AND PROCEDURE – Non-compliance with time limit for filing and serving an originating motion applying for leave to appeal – Non-compliance with time limit for filing affidavit in support and summons associated with appeal – Length of delays – Whether reasonable or acceptable explanation for delays – Prejudice to other party – Prospects of success – Contravention of the overarching obligations of the Civil Procedure Act 2010 (Vic) – Kuek v Devflan Pty Ltd [2012] VSC 571 – Peter Schwartz (Overseas) Pty Ltd v Morton [2003] VSC 144 -

ARBITRATION – Domestic arbitral award – Leave to appeal an arbitral award - Manifest error of law - Commercial Arbitration Act 1984 (Vic), s 38 – Yesodei Hatorah College Inc v The Trustees of the Elwood Talmud Torah Congregation [2011] VSC 622 – Mediterranean Olives Financial Pty Ltd v Lederberger [2011] VSC 301

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J. Twigg	Francis V Gallichio Lawyers
For the First Defendant	Mr P. Marzella	Russell Kennedy

HIS HONOUR:

Introduction

There are currently two proceedings on foot which involve the same parties and which arise from an arbitral award dated 8 March 2013 (“the Award”)[1] made by the arbitrator, Dr George P Deutsch (“the Arbitrator”). The Award was made in relation to an arbitration between Limin James Chen (“Mr Chen”) and Mei Fang Xu (“Mrs Chen”)[2] (together, “the Plaintiffs”),[3] and Kevin McNamara & Son Pty Ltd (“KMS”). The parties were in dispute with respect to the construction of an underground water tank, a tennis court and associated landscaping works at 17 Yarradale Road, Toorak (“the property”).[4] The Plaintiffs are the owners of the property; at which they also reside. The Award, broadly speaking, found in favour of KMS.
[1]A copy of the Award is set out in exhibit FVG-1 of the affidavit of Francis Vincent Gallichio affirmed 9 August 2013.
[2]I note that Ms Xu is referred to in the Award, various affidavits and submissions as Mrs Chen. For the sake of avoiding confusion, I will also refer to her as Mrs Chen for the purposes of this judgment.
[3]I also note that the Award, various affidavits and submissions referred to Mr Chen and Mrs Chen collectively as “MJC”. However, for the purposes of avoiding confusion, I will refer to them collectively as “the Plaintiffs”.
[4]Gallichio Affidavit, paragraph 4.

In proceeding number S CI 2013 3479 KMS is seeking from the Court, amongst other things, an order that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Limin James Chen v Kevin McNamara & Son Pty Ltd

Details

AGLC: Chen v Kevin McNamara & Son Pty Ltd [2013] VSC 539
Case: [2013] VSC 539
Decision Date: 11 October 2013

CaseChat Overview and Summary

Limin James Chen brought an application for leave to appeal a domestic arbitral award against Kevin McNamara & Son Pty Ltd, the respondent in the arbitration. The dispute arose from a commercial transaction, the specifics of which were not detailed in the summary. The Victorian Supreme Court was tasked with determining whether Mr Chen's application for leave to appeal was within the requisite time limits and whether there was a reasonable explanation for the delays. Additionally, the court had to decide whether the application was made in accordance with the Civil Procedure Act 2010 (Vic) and whether the proposed appeal had prospects of success.

The primary legal issues involved whether Mr Chen's non-compliance with the time limits for filing and serving the originating motion, the associated affidavit, and summons was justified. The court considered the extent of the delays, whether there was an acceptable explanation, and if the other party was prejudiced by the delays. Furthermore, the court examined if the application contravened the overarching obligations under the Civil Procedure Act 2010 (Vic) and if the appeal had merit based on a manifest error of law.

The court found that the delays in filing and serving the originating motion, affidavit, and summons were significant and not adequately explained. The respondent, Kevin McNamara & Son Pty Ltd, had been prejudiced by the delays, which hindered its ability to properly respond to the application. The court also found that the application did not meet the requirements under the Civil Procedure Act 2010 (Vic) and that the proposed grounds for appeal did not demonstrate a manifest error of law. Consequently, the application for leave to appeal was dismissed.

The court ordered that Mr Chen pay Kevin McNamara & Son Pty Ltd's costs of the application, reflecting the prejudice caused by the delays and non-compliance with procedural requirements.

Orders